Director of Public Prosecutions Noordin Haji has fought back claims that he is incompetent to head the spy agency, arguing he is not to blame for withdrawn criminal cases.
Responding to a petition seeking to block his nomination by President William Ruto as the Director General of the National Intelligence Service (NIS), Mr Haji insists that the withdrawal of high-profile corruption cases is not a sign of incompetence.
Mr Haji defended his decision to withdraw the cases, some of which touched on the president’s allies, saying he acted within the law to halt prosecutions after witnesses declined to testify in court.
The DPP argues it is not the duty of the prosecutor to obtain a conviction at all costs arguing he cannot force the witnesses to testify.
He made the response in a case filed by lawyer Katherine Cherotich at the High Court in Nakuru that seeks to stop his planned vetting by the National Assembly and subsequent appointment as NIS Director General to succeed Major-General (Rtd) Philip Kameru.
In his affidavit, Mr Haji said the petitioner has the opportunity to present his views to the right platform, which is the National Assembly, instead of the court.
According to him, the court will be usurping the powers of the legislators.
“I sincerely believe that the instant petition is an abuse of the court process as it is an unlawful attempt to use the Judiciary, to usurp the constitutional and lawful mandate of the National Assembly in vetting my suitability to the position of the Director General NIS,” reads part of the documents filed in court.
"The allegations in the suit, are baseless and cannot be substantiated," he states in the affidavit.
The DPP further seeks to have the petition dismissed on grounds that it was filed prematurely noting that the petitioner had not exhausted all the mechanisms provided for in the law.
Mr Haji claims the petitioner has never bothered to challenge any of the matters, decisions or issues she complains about or to take the steps required of her by law to seek appropriate redress in relation to complaints.
In the petition filed a week ago, the lawyer says Mr Haji is unfit to hold the position of NIS Director General.
Through her lawyer Kipkoech Ng'etich, Ms Cherotich argues that President Ruto nominated Mr Haji in total disregard to the requirements that must be met by for the position of NIS Director General, under chapter six of the Constitution.
"President William Ruto disregarded chapter six of the Constitution on leadership and integrity, therefore violating the law. Mr Haji is unfit to hold the position of NIS Director General because he has on many occasions violated the Constitution and his oath of office while serving as the DPP," avers Cherotich in court papers.
"Mr Haji has on many occasions while serving as DPP failed to adhere to provisions of Article 157 of the Constitution which prohibit commencement and or withdrawal of criminal cases due to influence, coercion, consent or authority of any person," further argues the petitioner.
According to the petitioner, Mr Haji has in the past admitted to having been misled and pressured through the media, by former Director of Criminal Investigations George Kinoti, to charge Mr Rigathi Gachagua, then the Mathira Member of Parliament, which amounts to a violation of the Constitution.
"Mr Haji has on many occasions publicly admitted that while serving as DPP, he was coerced and intimidated to charge and withdraw cases, which makes him unfit to hold the position," argues the petitioner.
"He failed to live up to his oath of office as DPP. While serving as DPP he displayed a lack of competence in discharging his duties as head of the prosecution body, compromising the public interest and demeaning the office he held," further reads the petition.
The petitioner also claims that Mr Haji has never made any court appearance since his appointment on March 28, 2018, raising questions on his competence and suitability to discharge his duties as the head of the prosecution body.
The petitioner also cites several high-profile cases that Mr Haji has dropped since President Ruto took over office, claiming the DPP was coerced and intimidated by powerful people in the current regime to drop the cases.